CIP-ICT PSP-2012-6 Grant agreement No 325171
LAPSI 2.0 Thematic Network
D2.1 – Good practices collection on access to data
Deliverable number/Name: D2.1: Good practices collection on access to data Dissemination level: public
Delivery date: 11 July 2014 Status: final
Author(s):
Coordinators:
Mireille VAN EECHOUD (IViR/UvA)
Research students:
Sam VAN VELZE (IViR/UvA) Marco CASPERS (IViR/UvA) Sarah Johanna ESKENS (IViR/UvA)
Contributors
Linda AUSTERE (Latvia)
Heather BROOMFIELD (Norway, companies register & meteo) Jo ELLIS (UK)
Matej MISKA (Czech republic) Maja LUBARDA (Slovenia)
Julián VALERO-TORRIJOS & Magnolia PARDO-LÓPEZ (Spain) Bastiaan VAN LOENEN& Michel Grothe (Inspire)
Simon VRECAR Marc DE VRIES
1
Table of Contents
1 Access as the linchpin for re-use of public sector information 4
1.1 Access under the PSI Directive 4
1.2 Role of Freedom of information laws 5
1.3 Aspects of access 6
1.4 Methodology 6
Characterization of FOIA elements 7
1.5 Summary table 9
2 Re-use friendly legal practices 10
2.1 Broad scope of access rights 10
Good practices 10
2.2 Grounds for non-disclosure 12
Good practices 13
2.3 Pro-active disclosure duties 14
Good practices 14
2.4 Non-discrimination 16
Good practices 17
2.5 Discoverability of PSI 18
Referral system & Request support 18
Public information registers / portals 19
Good practices 19
2.6 Ability to request bulk information and quick response times 21 Ability to request bulk information or dynamic supply 21
Quick response times 22
Good practices 22
2.7 Re-use friendly formats 23
2.8 No or reasonable charges 25
2.9 Proper review procedure to assure accessibility 26
3 Interim findings 26
4 Sector specific examples 28
4.1 Legal information 28
Online free access to legal information 28
Good practices aspects 29
4.2 Meteorological data 31
Norwegian Met Office open data 31
The Netherlands Met Office open data 31
4.3 Companies registers 33
Legal Framework 34
Data available, formats 34
Drivers for opening up 35
Challenges encountered 36
Usage of the data 37
4.4 INSPIRE 37
1
Access as the linchpin for re-use of public sector information
This introduction sets out the relationship between Directive 2003/98/EC on the re-use of public sector information (hereafter: PSI Directive) and national access regimes, and explains the methods by which we identified and structured good practices associated with rights of access to PSI. By way of summary, a table at the end of this chapter gives an overview of the different good practices identified and their effect on the three main aspects we analyse: that PSI must be discoverable (it is known what information is held by which organisation), available (public under FOIA, at reasonable terms and prices) and usable (meeting user needs, e.g. as regards format and timeliness).
1.1 Access under the PSI Directive
The Public Sector Information Directive sets out a general framework for the conditions governing the right to re-use information resources held by public sector bodies, which includes provisions on non-discrimination, transparent licensing and the like.1It is the main EU instrument for stimulating the creation of value added information products and services (tools, apps, content). The objective of the PSI Directive is to achieve a more level playing field across the EU/EFTA through minimum harmonization of national rules and practices, thus enabling European companies (and citizens) to exploit the full potential of re-using data produced by the public sector.
Re-use of government information naturally requires access to the information. However, the PSI Directive itself does not oblige Member States to grant access. This can be explained by the fact that the EU has only limited legislative competence to regulate access to public sector information at Member State level.2 Thus, the PSI Directive applies to documents that are already made publicly accessible under the national rules for access to documents (art. 1(3) PSI Directive).
An important improvement of the PSI Directive as amended in 2013 is that it requires rather than invites Member States to allow the re-use of documents of information that can be accessed under national access regimes (art. 3(1) PSI Directive).
1
Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information; also see Directive 2013/37/EU of the European Parliament and of the Council of 26 June 2013 amending Directive 2003/98/EC on the re-use of public sector information. For a consolidated version of the PSI Directive consult http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2003L0098:20130717:EN:PDF
2
LAPSI 1.0 Policy Recommendation N. 6, Rights of Access to Public Sector Information (hereafter: Policy Recommendation 6), available via http://www.lapsi-project.eu/outputs.
1.2 Role of Freedom of information la ws
Undeniably, the many open data policies that take shape all around Europe drive the potential for businesses and citizens alike to create new information services and products. Usually, such open data policies seem to be only loosely related to statutory rights to information and disclosure duties of PSBs. Rather they engage ‘soft law’ instruments at most. The commitment countries undertake in the context of the mushrooming Open Government Partnership are a case in point: countries ‘sign up’ to a number of transparency principles and draft their own action plans. We shall pick up on the importance of such informal norms later. Since the brief of the LAPSI network is on legal barriers to and enablers of re-use, our focus in this paper is on the legal framework for statutory rights to information in Member States.
Rights of access to information tend to be constitutionally guaranteed (as is also the case at the EU level) and then elaborated in a general ‘freedom of information act ‘or ‘FOIA’. The latter is the common term used in Anglo-Saxon countries. Elsewhere, general laws governing transparency are called ‘access to official documents’ acts, or ‘access to government information’ acts, or more recently also ‘open government’ acts and ‘right to information’ acts. In this paper all such terms are used interchangeably, with FOIA used as the default term.
Because FOIAs are the most generic instruments in that they apply to large parts of the public sector and many types of information, we focus on them here. However, information can also be made public on the basis of other legislative instruments. Some public sector bodies publish information on the basis of sector-specific regulation containing particular publication duties (e.g. public registries, meteorological services, legal information). This is why we also consider examples from sector specific legislation. Furthermore, access might also be granted not on the basis of an explicit legal right or obligation, but as part of ‘good’ policy, for example when local agencies make data sets available via data portals without legally being obliged to do so,3 or when PSBs use their discretionary policy space to promote re-use, as for example the Norwegian meteorological institute does.
Access rules are in essence framed towards government accountability and transparency, whereas allowing re-use (also) has an economic objective.4As just said, the EU has limited competence to harmonise national access regimes. The right to re-use thus sits on top a variety of national access rules that all differ in scope and field of application.5The type of information that FOIA covers might not be of particular interest for (commercial) reuse; or it might be, but FOIA will only allow access and not re-use. The procedures for obtaining access might also not be conducive to re-use, if it is time consuming for example, or prohibitively costly. Such enforcement problems are addressed in more detail in a dedicated WP.
3
For more information on all the different national access rights and obligations see Policy Recommendation 6.
4
At least, the PSI Directive stimulates re-use because of the economic benefits. Remarkably, re-use policies have been most successful in Member States that promote re-use based on arguments of transparency and accountability. See Janssen, K. ‘The influence of the PSI directive on open government data: An overview of recent developments’,
Government Information Quarterly 2011-4, 446. 5
1.3 Aspects of access
Tapping into the use potential of public sector information (PSI) requires that re-users know:
1. What information or data public sector bodies hold and what its characteristics are (PSI must be discoverable),
2. What information may be accessed, through which procedure, and what the conditions for reuse are, including pricing (PSI must be available).
3. Whether the data is of such quality (in terms of e.g. format, granularity, timeliness, completeness, accuracy) that it is usable.
The focus in this document is on the first two aspects in particular, as these are typically key elements of freedom of information legislation, i.e. laws that grant access to public sector information. The ‘availability’, in terms of workable conditions and pricing for the re-user veers towards the re-use side, as opposed to the mere access that Freedom of Information Laws are traditionally concerned with. But we can and will certainly identify in national FOIAs provisions that are supportive of re-use. Usability is primarily determined by user needs of course; but knowledge about data quality can also be considered as an aspect of discoverability (e.g. publication of metadata on datasets in asset registers).
1.4 Methodology
Given the key enabling role that access regulation plays for re-use, we ask ‘What are examples of good practices in access regimes that overcome the legal barriers to re-use of PSI? ’Becare-use the LAPSI network is concerned with legal aspects, our focus is on the regulatory side. However, it should be noted of course that good access practices need not necessarily consist of legal practices. Having rights of use in laid down in statutes for example is not necessarily better than using licences to ensure access, even if it has the advantage of legal certainty. In the same way, actual publication practices that exist without there being immediate legal obligations to disclose information in a certain way might work well to.
A (legal) practice is ‘good’ if it makes an access regime more re-use friendly. Our focus is on the user perspective. In discussions we established some main characteristics of ‘good’ practices. From the perspective of a re-user this includes rules which:
1. Ensure the widest possible access to resources
2. Limit the restrictions to what can be done with the information; 3. Provide legal certainty on what uses can be made;
4. Respect user preference with respect to e.g. format of supply; 5. Help to reduce search costs;
6. Give re-users a voice in decision-making on what data are made open and how. The latter aspect is virtually absent from freedom of information laws, but there are initiatives in Member States geared towards identifying promising datasets for example. The availability of review and enforcement procedures is subject of the work package on enforcement and will thus be addressed largely elsewhere.
Likewise, the WP on Licensing analyses which licensing types are re-use friendly and thus to be preferred. So to the extent that points2-3 above cover procedure and licensing aspects, this document does not go in to detail so as to avoid overlap with the work of other LAPSI WPs.
These Good practices are primarily aimed at policymakers who are considering reform, or the introduction, of access rules that are conducive to re-use. Alternatively, and easier to do, policymakers might use them to provide PSBs guidance on how to apply FOIA in a re-use friendly way wherever the law permits.
Characterization of FOIA elements
Our research is structured in the following way. As a recent treaty, the Tromsø Convention on Access of 20096 can be held to reflect fairly commonly occurring provisions in national access laws. Taking the Convention supplemented by a number of (recent) national FOIAs, we identified and clustered the elements that we might expect to be present in most freedom of information acts and that are directly relevant for re-use.
These provisions relate to:
a) the scope of PSBs and information types covered;
b) possible grounds for non-disclosure (limitations on access); c) access for all (non-discrimination);
d) any charges for access;
e) standards on how to process requests for access; f) form in which access should be granted;
g) review procedures.
Less common provisions, but highly relevant to re-use are those on h) the uses that may be made of information
i) instruments informing on the resources/information present within PSBs j) duties to pro-actively disclose certain public sector information.
Taking the aspects of access identified above at 3 (that PSI must be discoverable, available and usable); we then mapped for each of these categories what the relevant provisions of the PSI Directive favour. This allows us to highlight any tension between the norms (and objectives) of the PSI Directive and FOIA norms. If for example access is granted by handing over a paper copy to an applicant, this restricts the re-user in what can actually be done with the data. This explanation leads to what could be a ‘good’ practice to solve this tension. In this example: when the user has the possibility to specify the preferred format; or the default mode of granting access under the relevant FOIA would be digital and in open format.
6
The Convention on Access is our starting point because this is a widely agreed on set of access rules. Note that we do not take the substantive rules of this Convention as the norm for what is a ‘good’ practice. It is not a given the Convention’s minimum requirements are good from a re-use perspective.
From a re-user perspective good practices also include non-regulatory instruments that make public sector information known, available and usable (e.g., data portals that are created outside of any FOI obligations).
Overall we looked into the activities of EU member states. In particular we looked for examples in the United Kingdom, Slovenia, The Netherlands and Spain, either because open data monitors and experts in our network point out these countries have very active open data policies or because they have recent FOIAs. We also included some examples of non-EU countries (Australia) because their well-developed access and re-use regimes contain informative examples for our project.
1.5 Summary table
Table: Freedom of information laws characteristics conducive to promoting re-use of PSI (LAPSI 2.0 Good practices, June 2014)
Helps make PSI Good
FOIA practice
Discoverable
(known what PSI is where)
Available
(what PSI public, how to get it, terms& pricing)
Usable
(fit for purpose re-user)
Broad scope information
& bodies covered √
Few and narrowly
described limitations √
Access for all
(non-discrimination) √
Access to bulk &
dynamic data √
Quick response times √
Pro-active disclosure duties √ √ Online √ √ Open format √ User led √ Search support √ Referral system √ Information registers / portals √
User preferred form √
Open formats √
Machine
readable √
No or low costs of
access √
Efficient review access
2
Re-use friendly legal practices
2.1 Broad scope of access rights
In the introduction we have seen that the practical value of the right to re-use PSI depends largely on the availability of information under local access to information acts. Obviously then, the scope of such laws is important, on four issues especially: a) the type of institutions covered, b) the information types covered, c) the permitted grounds to refuse disclosure and d) any obligation to pro-actively disclose information in addition to answering access requests. From the re-users perspective, pro-active disclosure duties are closely tied to discoverability (knowing which information is available for re-use, and knowing its attributes), which is why we discuss them mainly in the Discoverability section. In this and the next section the focus is on the legal status of PSI as public information.
The scope of the PSI Directive is determined by the concepts ‘Public Sector Body’ and ‘Document’, as defined in article 2. Tension between the local access regime and the EU re-use regime can occur in the sense that both regimes are autonomous and define their own scope. It turns out national access regimes differ on the type of bodies that are subject to obligations to make information public and the type of documents or information covered.7Information that falls within the scope of the PSI Directive therefore, does not necessarily have legal status as public information under local law.
From a re-use perspective it is ‘good’ if it is clear beforehand with which institution a re-use request may be filed and what types of ‘documents’ can be requested. Also, the less bodies are excluded, the more PSI will be available, so the less restrictive the definitions of PSB and document, the better.
Good practices
Latvia - Broad scope of institutions and information
The FOIA of Latvia provides for broad definitions of information and institution: ‘information is defined as ‘information or compilations of information, in any technically possible form of fixation, storage or transfer’ and ‘institution’ is defined as ‘every institution, as well as persons who implement administration functions and tasks if such person in the circulation of information is associated with the implementation of the relevant functions and tasks’.8 Courts and other independent bodies are included to the extent the request refers to an administrative function. In light of the traditional separation of powers it is common for Member States’ law to
7
Policy Recommendation 6, p. 7.
8
have separate norms on access to legal information (see the section on legal information below).
The Netherlands – Broad scope of information covered
The Dutch Wet Openbaarheid van Bestuur (‘Wob’) gives a right of access to ‘information contained in documents’, the latter covering all types of media, including datasets. According to the letter of the Wob, the information has to relate to an ‘administrative matter’, but the highest administrative court has consistently interpreted that notion very broadly, to include any information that is somehow related to the making and execution of public policies. In practice, the right of access thus applies to virtually any information held by a PSB.
Slovenia – Broad scope of institutions and information covered
The FOIA of Slovenia covers a large number of bodies and distinguishes two types of bodies: the more typical PSBs and certain private law entities. The PSBs include state bodies, local government bodies, public agencies, public funds and other entities of public law, public powers holders and public service contractors. All government bodies are included, so even courts and parliament. Covered information by the FOIA for these bodies includes all documents that all mentioned bodies obtain or create when performing their public duties.
An amendment of 2014 added the category of private law entities that are under direct or indirect dominant influence of the Republic of Slovenia, of municipalities or of other public law entities. Only certain information types held by such private entities are subject to the access law. Access rights are limited to information on concluded contracts related to obtaining, disposing with or managing physical assets of a business entity or expenditures of a business entity for ordering goods, construction, agency, advisory or other services and sponsorship, donation and copyright contracts and other agreements, pursuing equal effect. In addition, FOIA covers information on the type of representative or membership in executive, management or supervisory body, the agreed or paid amount or benefit of executive, management or supervisory body member, other business entity representative, and information regarding employment or appointment of these persons, which demonstrates fulfilment of employment or appointment measures and conditions.
Note that the FOIA is wide in scope with regards to the bodies that are covered, but the information covered by the act is more restricted, especially with regards to the private law entities. The latter information solely consists of transparency issues, and not datasets that might typically be of interest for commercial re-use.
Spain – Broad scope of information covered
The extent to which PSI is covered by the Spanish FOIA is very broad. It includes all information held by the PSBs, regardless of the format in which the information is embodied.
2.2 Grounds for non-disc losure
Even if the general provisions of the FOIA make it applicable to many information types from many institutions, limitation provisions that are broadly formulated may narrow down the scope of the re-use regime dramatically.
From the perspective of the re-user it is good if the limitations are ‘set down precisely in law’ and are in a closed list, restricted in number. The Tromsø Convention on Access requires that limitations must be necessary in a democratic society, a reference to the European Convention on Human Rights. As the European Court of Human Rights develops a right to access government information under article 10 ECHR (freedom of expression), it is likely that national access regimes and especially grounds for excluding access are more often tested against article 10 ECHR. To what extent Member States can then maintain absolute grounds of refusal is uncertain.
In any case, most Freedom of Information Acts contain more relative grounds of refusal, whereby the interest in public disclosure must be weighed against one of the enumerated interests, for example national security, privacy, crime prevention, or legitimate commercial interests of third parties. The list of exemptions can be elaborate (as in the UK’s FOIA, with more than 20 grounds for refusing access) or relatively short, but just how much PSI it carves out from public access depends of course to a large degree on how narrow or broad they are applied.
It is preferable to have limitations that are formulated, interpreted and/or applied as strictly (narrow) as possible, as that would allow for more re-use under the directive. For individual PSBs, or FOIA officers, the availability of guidelines may be good as these can assist in the assessment of whether PSI is exempt on the basis of FOIA. Such guidelines ensure more transparency towards re-users on the exemptions that may apply to their access request. A good practice would also consist of having the same (and only those) limitations that apply to access, also apply to re-use.
To the extent that there are (legitimate) limitations to access, it may be considered good practice if the law sets time limits beyond which the limitations invoked no longer apply or demands that their continued effect be reviewed (although this is less useful for time sensitive information types). Furthermore, from the perspective of the re-user it is good if the law does not enable PSBs to reject a request for access for the reason that producing the document is too time consuming, or too burdensome in monetary terms.
It is also good practice if the same, and only those, limitations that apply to access also apply to re-use. It should be noted that as regards intellectual property rights, the fact that information held by a public body is subject to third party intellectual property rights does not exclude it from the scope of FOIA per se. Access may still
be given, but the use made of the information is limited by the IPRs. The PSI Directive on the contrary does not apply to information in which third parties own e.g. copyright or database rights.
Good practices
Australia – Provide factors for weighing interests
The Australian Freedom of Information Act 1982 (FOIA) is very elaborate on documents that are exempted from access. The law distinguishes exempt documents from conditionally exempt documents.9 The exempted documents are not just listed in one provision in the act, but there is one section for every type of exemption, allowing the act to go into detail concerning what does and what does not constitute an exempt document of that particular type.
The conditionally exempt documents are handled the same way, but differ in the fact that they are not absolute grounds for refusal.10 With regards to these documents, PSBs have to weigh the interests affected by an eventual disclosure of the documents. What is interesting about the Australian act is that it enumerates a list of relevant factors and a list of irrelevant factors in weighing these interests, narrowing the discretion of the PSBs and allowing for more legal certainty.11 By providing such a list of relevant and irrelevant factors, the decisions of the PSBs on whether or not to disclose documents may be more predictable and transparent. At the same time, it gives support to PSBs in making the decision with regards to disclosure of the documents.
The Netherlands--Closed list of exemptions
The Dutch Wet Openbaarheid van Bestuur lists absolute and relative grounds for refusing access. The highest administrative court has repeatedly held that no other grounds can be invoked to refuse access. Notably, the fact that searching and copying the information requested takes a lot of resources are not relevant for the decision whether the information must be made public.12
Sweden – Limited grounds of exemption
The Swedish FOIA (Freedom of the Press Act, elaborated in the Public Access to Information and Secrecy Act of 2009) recognizes a limited and exhaustive number of grounds on which disclosure may be refused (e.g. national security; monetary policy; crime prevention and prosecution).
9
Article 11A(4) and (5) FOIA 1992.
10
Article 11B of FOIA 1992 requires the PSBs to balance the public interest with.
11
Article 11B(3) sums up the factors favouring access; Article 11B(4) sums up the irrelevant factors.
12
See among other cases Administrative Division Council of State, ECLI:NL:RVS:2009:BI2651 (in Dutch), for English summary see http://www.epsiplatform.eu/content/landmark-decision-landmark-case
2.3 Pro-active disclosure duties
National freedoms of information acts tend to recognize two types of access: passive and active. Pro-active or ‘active’ dissemination refers to the situation that a public sector body takes the initiative to publish PSI. Access given on request (or: passive disclosure). It is reasonable to assume that making data publicly available pro-actively has the larger positive effects on re-use. It would also seem to be easier to build a transparent re-use system on the basis of pro-active publication duties. Most national access regimes however focus on access on request; this is reflected in the fact that a large part of most freedom of information acts is dedicated to aspects of the request procedure.
In between passive and active disclosure are systems where the granting of multiple requests for the same information triggers an obligation to actively publish the information, e.g. on the PSB website or a data portal. It might be assumed that multiple requests are an indicator of re-use potential, and it would therefore be good practices if PSBs must publish such information actively. That it is maybe desirable but not necessary to have impose a legal obligation is evident from the fact that in many countries public authorities move towards a system where FOIA applications and the information released are published online (see also the Norwegian Electronic Post Journal discussed in section 2.5).
Of note, the boundaries between access on request and publishing pro-actively seem to blur in the digital environment. If data is ‘delivery ready’ at known terms, we consider it as pro-active dissemination.
Good practices
Slovenia – Mandatory online publication
The Slovenian Access to Public Information Act (APIA) provides that PSBs are obliged to make available PSI online that is included in a statutory list. The list consists mainly of information that is of particular relevance from the perspective of transparency: consolidated texts of regulations, proposals of regulations, documents that are of important nature for the decisions of the PSB and its interaction with other actors and information on their activities and services. Nonetheless, it is good example of how could be dealt with data that is more likely to be commercially re-used and exploited.
Spain – Mandatory pro-active disclosure
The Spanish FOIA goes further than solely providing which PSI can be granted access to: the law also provides for pro-active publication of PSI in certain cases, so without a request having to be made.13 The act does not provide for limitations to this
13
Sections 5-11 of Ley 19/2013, de 9 de diciembre, de transparencia, acceso a la información pública y buen
obligation to PSBs. If personal data are involved in the PSI, anonymisation prior the disclosure is required. While such a provision does not extend the scope of information covered by the FOIA per se, it promotes access to, especially certain kinds of, public sector information.
Spain – Frequently requested information
According to the FOIA of Spain public sector information that is frequently requested, has to be made accessible online.14This information is to be published through a transparency portal, where the PSB in question also has to publish certain kinds of information pro-actively.15
UK – Publication Schemes
The UK's Freedom of Information Act 2000 does not directly oblige public sector bodies to disclose PSI pro-actively. However, all public authorities have a duty to adopt and maintain a publication scheme.16 Such a scheme must specify classes of information which the PSB publishes or intends to publish (e.g. details on its own organisation and tasks, on the registers or other datasets it holds) and detail how it will do so. The public sector body is then committed to make information available to the public according to its own scheme. PSBs thus accept an obligation to publish pro-actively by way of adopting a publication scheme. The schemes also function as search support: re-users know what the PSB will make public. If a public sector body drafts its own scheme, it has to be approved by the Information Commissioner. Public sector bodies can also adopt a model publication scheme prepared by the Information Commissioner.17
UK – Local Government Transparency Code
Separate from the FOIA regime, the UKs Minister responsible for local government has issued the 2014 ‘Local Government Transparency Code’, which obliges local authorities (only in England) to pro-actively disclose certain information online,
in a
format and under a licence that allows open re-use.On a quarterly basis, local authorities must disseminate PSI regarding: expenditures exceeding £500, Government Procurement Card transactions and procurement information.18 Certain kinds of PSI have to be published annually, among which data regarding subsidies given, organisation charts, as well as data on land and building assets owned.19 The code recommends other PSI to be disclosed as well. This is, however, not an obligation.20
14
Section 21 of Spanish FOIA.
15
Section 10 of Spanish FOIA.
16
Art. 19 and 20 Freedom of Information Act 2002.
17
A model may include environmental information, public access to which is prescribed by Directive 2003/4/EC of 28 January 2003 on public access to environmental information (implemented in the UK in the Environmental Information Regulations (IER).
18
§§17 and 18 of the Local Government Transparency Code
19
§§24 and 25 of the Local Government Transparency Code.
20
Requiring PSBs to pro-actively disclose PSI promotes access and therefore also re-use. The code from the UK mainly concerns information that is interesting with respect to transparency, but it also encourages PSBs to disclose any data that they hold or manage, or in other words to be open by default.
2.4 Non-discrimination
There are many situations in law where a right to access government held information is conditional: for example where it concerns the rights of data subjects to be informed about personal data held about them, rights to information in the context of legal disputes, planning permission procedures or access to statistical micro-data for researchers.21 In such cases access is typically ‘privileged’ in that the person must have a particular (legally recognized) interest in obtaining access or have a certain status. The PSI directive only applies where there is ‘public’ access, so in cases of ‘privileged’ access Member States do not have to ensure that re-use is allowed.
The PSI Directive seems purposefully vague in its references to what must be understood as public information. It states ‘This Directive builds on and is without prejudice to access regimes in the Member States’ (art. 1(3) PSI Directive). It does not apply to ‘documents which are excluded from access by virtue of the access regimes in the Member States’ or which are ‘documents access to which is restricted by virtue of the access regimes in the Member States, including cases whereby citizens or companies have to prove a particular interest to obtain access to documents [author emphasis] (art. 1(2) sub c and ca PSI Directive). We can recognize here the FOIA absolute and relative grounds of refusal for access to certain information (discussed above) as well as the distinction between privileged access and general access.
Rights to information as enshrined in freedom of information laws fundamentally mean: access for all, not privileged access. The Tromsø Convention stipulates that access to official documents is: ‘the right of everyone, without discrimination on any ground’ (art. 2(1) Tromsø Convention). The principle of non-discrimination is often expressed explicitly in national FOIAs, in a provision stating that anyone can request access, or in a provision that stipulates the applicant does need to motivate his or her request. In its broadest sense, non-discrimination not only means no distinction is to be made between different groups of natural persons, but that legal persons can also invoke FOIA. Furthermore, in light of EU law, no distinction should be made between domestic and foreign applicants.
It is beyond the scope of this paper to analyse the application of the non-discrimination principle in depth; for our purposes it suffices to say that MS that
21
For example, the Dutch Centraal Bureau voor de Statistiek (Statistics office) holds data that it may not disclose due to data protection and commercial confidentiality restrictions; on the basis of the Act governing its research, collection and dissemination duties, it has set up a system where certain researchers can get access to micro-data under strict conditions. A clear example of privileged access.
adhere to a broad interpretation of non-discrimination enlarge the pool of information available for re-use. Since an objective of the PSI Directive is to stimulate the development of cross-border information services built on PSI, non-discrimination at the point of access is of great importance.
The PSI Directive itself contains a non-discriminatory provision in article 10. However, this provision is not as broad as the non-discriminatory principle in access regimes. Article 10 states that comparable categories of re-use must be treated similar where it concerns any conditions and charges imposed for re-use.
Good practices
The Netherlands – No motivation of request
The Dutch Wet Openbaarheid van bestuur (FOIA) explicitly states that whoever requests access to information need not motivate his or her request. The legislative proposal for a new Open Government Act that is currently pending before parliament (Second Chamber) extends the no-motivation clause of the current FOIA to requests for re-use.
Norway – No motivation of request
In Norway any person may file a request for access and does not need to provide a reason for their application. They may also request access anonymously. Section 3 of the FOIA states that ‘Any person may apply to an administrative agency for access to case documents, journals and similar registers of that administrative agency.’ Coupled with this everyone has the right to reuse PSI for any purpose. A ‘reuse by default’ regime is enshrined in the Norwegian Freedom of Information Act. Section 7 prescribes that the user is given the right to reuse documents for any purpose unless this is prevented by other legislation or the rights of a third party.
Slovenia – No motivation of request
Under Slovenian law access is not conditional on the showing of a legitimate interest. Everyone may file a request and re-use PSI. Article 17 paragraph 3 of Access to Public Information Act (APIA) establishes that ‘The applicant is not required to give the legal grounds for the request or expressly characterize it as a request for the access to public information. If it is evident from the nature of the request that the latter concerns access to public information under this Act, the body shall consider the request pursuant to this Act.’
Spain – No motivation of request
In Spain it is not required to justify or explain your access request and you do not need to show any interest.22 Requesters can do it on a voluntary basis.
22
2.5 Discoverability of PSI
Discoverability is one of the first thresholds a re-user needs to overcome to get access to PSI. What kind of information is available? Where can this information be found? What are its attributes? These are key questions a re-user asks himself. Thus, PSI must be discoverable from a re-users perspective. Discoverability is an important aspect for both pro-active disclosure and access on request.
Without proper knowledge about what information is available and where this information can be found, actual re-use will be restrained. Therefore, a re-user needs support to lower the search costs.23We have identified different forms of search support embedded in access laws: referral systems, request support and public information registers. The latter make take the form of data portals, but generally speaking, data portals are developed either on the basis of sector specific regulation (e.g. Inspire, see annex) or with only a modest link to formal legislation like FOIAs. Considering their great value for discoverability we have included some examples.
Referral system & Request support
A referral system helps applicants get to information in cases where they may be unsure which institution to address with an access request. Rather than simply denying an application, referral duties ensure that the PSB redirects the applicant to the relevant PSB that actually holds the information. The Tromsø Convention on Access favours such a system: if a public authority does not hold the requested information or is not competent to decide on access, it should ‘wherever possible, refer the application or the applicant to the competent public authority’ (Article 5(2) Tromsø Convention).
If documents are held by a public sector body but re-use and even access is restricted because a third party outside government holds intellectual property rights (esp. copyright and database rights) in the content, a referral to the IP holder reduces search costs for the re-user as well, by making it easier to know where to go for clearance of IP rights.
Referring applicants to the ‘right’ PSB is one way to make it easier to find information. But also when the applicant is already at the right door so to speak, it can be difficult to know what information is obtainable. FOIAs that oblige public authorities to assist applicants in detailing their request show good practice. Again, the Tromsø Convention contains such a standard, as contracting states must ensure that ‘the public authority shall help the applicant, as far as reasonably possible, to identify the requested official document’ (art. 5(1) Tromsø Convention).
Public information registers / portals
Few general access laws oblige public sector bodies to provide insight into their information/data holdings by publishing an overview (‘register’), let alone have it included in data portals. Yet means that aid the ‘discoverability’ of PSI – knowing which information resources exist and what organisation holds them—are important for effective access. Information registers ‘Scandinavian style’ contain information on incoming and produced documents/datasets at a certain PSB. Traditionally such registers are not made with a view to disclosing structured data, so the suitability for re-use is not optimal.
While a one-stop-shop for all kinds of PSI in a certain country or region (or even EU wide) can be very convenient for the re-users, it may imply of course substantial effort to be expended by the PSBs that have to report their information holdings and make them available. This might also explain why initiatives to set up data portals often operate at a sector specific level (e.g. Inspire geo-portal, geo-observation data through http://www.geoportal.org), or on the basis of voluntary participation (e.g. data.overheid.nl) and attract PSBs that are already accustomed to publishing data online (e.g. statistics offices, mapping agencies).The number of data portals at central, regional and local levels of government in Member States is growing rapidly. Their structure, contents and institutional embedding appear to be quite diverse. For an overview of official data portals of EU Member states see http://datacatalogs.org/group
Good practices
The Netherlands
duty to provide search support and to refer applicantsRequests for information must be made to the PSB that holds information. Under the Dutch FOIA, a PSB must assist the applicant in identifying which documents it seeks access to. This is an indispensable part of system because the statutory right is to information laid down in documents; an applicant need only name the (administrative) matter on which he or she likes to be informed, it is not necessary to know specifics about documents.
The Dutch system also obliges public bodies to refer misdirected applications for access to PSI to the relevant public body holding the information. So if a request is made to a public body that does not hold the information, the public body has a duty to refer the applicant to the relevant public body. In this way, the re-user will still obtain the relevant information without having the burden to locate the relevant public body that does hold it. This duty to referral is established in article 4 of the Dutch FOIA (WOB).
The Netherlands
duty to refer to IP holderA duty to wherever possible refer an applicant who seeks to reuse PSI to the relevant third party IP holder is part of the pending legislative proposal for the new Open
Government act which when passed will replace the current FOIA (Wet Openbaarheid van Bestuur).
Slovenia
duty to referIf a request of access to PSI is directed at the body that is not competent to assess the application, it has to send the application immediately to the competent PSB and notify the applicant accordingly. Therefore, a request cannot be refused on the mere grounds that it is directed at the wrong PSB. The notification enables the applicant to send a future request to the right body, allowing for a more efficient procedure.
Norway: OEP – Norwegian Electronic Post Journal
The OEP (Norwegian Electronic Post Journal)24 was launched as a one-stop shop for access to Public Documents in 2010. The goal being to provide user friendly access to public sector information and documents.
OEP provides has a dual function:
Users can search the metadata about every archived document that the Government has in its possession, and;
They can request access to documents electronically via the service. This can be done anonymously, free of charge and with no requirement to justify why they require access.
By digitizing the process and adding technical solutions for handling requests in the Case Handling Systems, the time spent on handling requests is greatly reduced and requests are handled in a matter of days.
Usage statistics prove that this approach has been highly successful. After launching the service the number of FOIA-requests for Ministerial documents has increased by 400%. In 2010 when the system was launched it forwarded 56 000 requests. In 2013 this number increased to 203 000. For journalists and other users, OEP has contributed to making access to public documents easier and more streamlined. The digital access to public documents has enabled them to be better suited to have oversight of the government. User surveys show that the user basis for the OEP consists of approximately 50 per cent Journalists. Amongst the others users, we can identify concerned Citizens, NGO’s, Businesses and Civil servants.
Queensland, Australia: publication of statement of affairs
The FOIA of Queensland, Australia, obliges PSBs to publish an up-to-date statement of the affairs of the PSB on a yearly basis. This includes a description of the documents that are usually held by the PSB, which consists among others of documents that ‘are available for inspection at the agency’ and documents that are available for purchase or free of charge. By publishing the available documents in the possession of a PSB, applicants know upfront the available documents they
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might want to have access to. This makes it easier to find PSI and enables efficient searches for government data by potential re-users.
United Kingdom – central data portal http://data.gov.uk
The data portal of the United Kingdom government is a well-known example of a centralized portal. The portal provides for a large number of published datasets – almost 14,000 – which originate from several public sector bodies. It also provides for almost 4,000 titles of databases which are not (yet) published, but that are held by certain PSBs, so it serves discoverability and access simultaneously. The portal enables the person seeking information to efficiently search for the right information: the datasets are categorized, there is a normal search option and there is an option to use a map based search engine to filter on geographical aspects. The site also provides special tabs for the categories of information concerning 'Public Roles & Salaries', 'Open-Spending' and 'Spend Reports', the kind of information that is usually asked for by information seekers such as journalists. Furthermore, it is possible to request for datasets and to see which datasets other users already requested.
Sweden
register of official documentsUnder Swedish FOIA, public authorities must keep a register of all official documents25 received by it or created by it.
2.6 Ability to request bulk information and quick response times FOIAs are normally not designed for requests concerning large amounts of data, let alone that PSBs are expected to provide automatic updates on the requested information. Pro-active disclosure (or ‘near’ pro-active disclosure) through portals seems the most obvious way to ensure re-users can have bulk access in a timely manner. If an application needs to be made for access, slow response rates adversely affect the value of access.
Ability to request bulk information or dynamic supply
That FOIAs are generally not geared towards providing dynamic access to bulk data can be explained by a number of facts: FOIAs primarily serve objectives of accountability, they traditionally are concerned with individual documents, and often date from pre-internet times when the supply of structured data online was not developed, or only for very specific types of information and public sector bodies (like Statistics, Company registers). To have bulk supply, and to have it not on the basis of repeat access requests but dynamically, reduces transaction costs for the re-user and thus favours use. Ideally an access regime anticipates the needs of the re-users and therefore allows bulk requests and makes provision for continuous flow of information after a request.
25
Quick response times
A request for re-use of information must be processed within a reasonable time, says Art. 4 PSI Directive. This provision does not govern time limits for access procedures under local FOIA, but the PSI Directive does demand that re-use decision timeframes are consistent with access decision time frames. For many providers of information products and services, timeliness of data supply will be one of the crucial factors that determine the actual re-use potential. So FOIA processing time is important. A good practice thus consists of a prompt process time. At the least, the response times for access requests should be subject to the ‘reasonable time’ criterion in the PSI directive, including its fall-back criterion of twenty working days.
Good practices
Slovenia – Requests online
The Slovenian FOIA provides that request applications, among other sorts of documents such as complaints, may be filed in electronic form with a secure electronic signature with a qualified certificate. These applications are to be filed through the competent PSB’s system or the unified system that the Minister is appointed to establish. However, this unified system did not yet get off the ground and in practice PSBs tend to accept applications by e-mail that are not electronically signed.
While the case of Slovenia shows a certain mismatch between a situation desired by legislation and the daily practice of PSBs, the legislation itself may be considered a good practice. When such legislation is actually put into practice, PSI can more easily be requested online and enables (to a greater extent) the possibility of multiple request of the same kind of data over time. Simultaneously, this example shows that ‘good’ legislation alone may not suffice. The implementation of the legislation by PSBs is crucial to whether a law has the desired impact.
Norway – Quick response
In Norway a request must be dealt with as soon as is practically possible and preferably within one day. Normal requests should not take longer than 3 days. In larger cases more time may be necessary, this is acceptable, however the decision on whether to grant access must still be made within the 3 days. If the request is not handled within 5 days, it is automatically sent to the responsible Ministry. In practice the average response time is about 36 hours. This example does not only show a good practice of legislation that provides for short response times, as three days constitute a very short term; in practice the average is even shorter which makes it a good non-legal practice.
The Netherlands
Aligned response timesUnder the pending proposal for an Open Government Act (which when passed will replace the existing FOIA), the rules with regard to the processing time of access
requests are extended to apply to re-use requests.26 The maximum processing time would be two weeks.27
2.7 Re-use friendly formats
The PSI Directive requires PSBs to disclose PSI only in pre-existing formats, but it favours supply in machine-readable form, and appropriate meta-data as well as the use of open formats (art. 5(1)) PSI Directive. Member States do not have to oblige PSBs to ‘create or adapt’ PSI in order to comply with the directive (art. 5(2)).
Again, it is important to note that while the Directive sets down rules for re-use and obviously favours the supply of PSI in electronic, structured form in non-proprietary formats, on the access side national regimes determine the form in which access is granted. This has the potential to create problems for an effective re-use regime. For example if a public sector body may give access by allowing inspection only, or by supplying paper copies. In this light, access rules that oblige disclosure in electronic form, in a format desired by the public it will be good for re-users if a national regime provides access to PSI in an open format to ensure the re-user can re-use the PSI effectively. This concerns both the cases of pro-active disclosure and access on request. As such access regime will contribute to the usability of PSI. National rules differ substantially,28 but there is a trend among Member States to integrate re-use friendly format provisions in the access law. Even more important for the promotion of reuse are the many open data strategies, which set out policies for making government data re-usable, even if not reflected in binding legal norms.
Providing access to data by way of an API or other type of network service enhances usability of the data in the sense that re-users can more easily manage the data they get access to. On the other hand. API limits (size of requests handled for example) can decrease the usefullness compared to supply through downloads.
Requirements on metadata documentation and the interoperability of data also affect the forms in which access is provided. Standardized meta documentation across PSBs working in the same sector ensures the data is easier to manage. See the Inspire case study in the Annexes. Interoperability refers to providing data in the machine readable format.
From the reuse perspective, the ‘golden’ way may be to make structured information available online as Linked Data. The development and use of uniform resource identifiers (URIs, names or locators) however is at varying stages of development in Member States, and not surprisingly, not a feature addressed in access laws but rather in sector specific actions. The EC funded Europeana project for example is piloting the use of URI for linked data on cultural heritage object. The
26
Article 6.2 paragraph 1 of the Dutch legislative proposal for an Open Government Act.
27
Article 4.4 paragraph 2 of the Dutch legislative proposal for an Open Government Act.
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operationalization of the European Case Law Identifier and the European Legislation Identifier (ELI) will bring linked legal information closer.
However, it is important to note that the initial aim of FOIAs is to promote transparency. Disclosure in only machine-readable or ‘expert-readable’ format ignores the (important) transparency aspect of FOIA. Thus, it is important that PSI keeps being disclosed in a ‘human readable’ format that is in a form that is intelligible for the average citizen.
Good practices
Netherlands
Follow preferred format applicantUnder the Dutch Wet Openbaarheid van Bestuur, the public body must in principle grant access in a form that the requesting user prefers. The obligation does not go so far as to force public authorities to convert data to a format which it itself normally does not use.
Slovenia – Applicant determines format
The Slovenian FOIA provides that the applicant must specify the format in which it wants to obtain the requested PSI (for access and re-use). If the PSB delivers the documents or information in another format than is requested, the applicant may file a complaint to the Information Commissioner.29 This constitutes a good practice, because allowing (or obliging) an applicant to determine the format in which PSI is to be acquired enables the potential re-user to request the format he needs to effectively re-use the information.
Spain – Access electronic by default
The Spanish legislation provides that access to information is granted through electronic means by default.30 Other ways to access the requested information are, however, possible. Electronic means are more appropriate for re-use than, say, paper means, but the ‘re-use friendliness’ still depends on how electronic access is given; it does not necessarily guarantee that the PSI is in a format that is useful for re-use purposes. PSBs might use their discretion to provide the information not just through electronic means, but also to re-use suitable electronic means.
Norway
Soft law on formatsThe Norwegian FOIA allows the Agency itself to determine the format in which to deliver the information. However there are now a number of ‘soft law’ tools in existence which encourage and support the opening up of information in machine readable formats. These include Open Data Guidelines which can be found here in Norwegian. The Guidelines addresses a number of issues, such as that access and
29
Article 17 of the Slovenian Access to Public Information Act (APIA).
30
re-use should be free (in principle); data should be provided in machine readable formats; have adequate documentation, be visible and findable at a permanent (internet) address. Coupled with the guidelines, the Norwegian Government has adopted a Circular on Digitisation, which has specific terms on the release of Government data and requires the majority of State organisations to adhere to the following terms:
The organisation will make their suitable information available in machine readable format.
New systems and upgrading of existing systems shall make it possible for data to be made available in machine readable format.
The organisation shall follow the ‘Guidelines on making public data available’. These tools are proving very useful in getting data released in Norway.
United Kingdom – follow applicants preference
Under the revised UK freedom of information act, when someone request access to information contained in a dataset and wishes to receive it in digital form, the public body concerned is under an obligation to ‘so far as reasonably practicable, provide the information to the applicant in an electronic form which is capable of re-use.’ (Section 11, FOIA).
2.8 No or reasonable charges
An important aspect with regard to access to PSI concerns the costs of access. National freedom of information acts differ substantially when it comes to whether applicants must pay to access information, and for what activities of the public body: does it include resources (time) spent searching, examining documents to determine whether they are exempt from access, editing documents (e.g. anonymizing, deleting commercially confident data), the cost of copying, cost of medium, postal charges or a fee to cover e.g. the cost of running a portal?
Any charges made for access will impact the practical availability of PSI for re-use, especially considering that many freedom of information laws still operate on the principle that applicants must pay for each copy of a document. The Tromsø Convention stipulates that if applicants are charged for copies, the charges must not exceed the actual costs of reproduction and delivery of the document. Tariffs of charges should be published (art. 7 Tromsø Convention).This is in fact a commonly used system. Now that since the PSI Directive revision, charging at most marginal costs of dissemination is the default rule for re-use charges as well31, the cost systems seem to be broadly in line. There are of course other aspects to charging: what a PSB does or does not charge for may affect the provision of information
31
Note however the exception to marginal cost pricing that the PSI Directive allows, and that the EFTA court has interpreted in Case E-7/13 Creditinfo Lánstraust hf. v þjóðskrá Íslands (Registers Iceland) and the Icelandic State (16 December 2013).
products and services in markets. We refer to the work done in the LAPSI 2.0 WP on competition for such aspects.
2.9 Proper review procedure to assure accessibility
Without proper and timely review and enforcement, access rights cannot be effectively exercised. The same applies of course to re-use rights (art. 3 PSI Directive). A good access regime must therefore include a proper enforcement mechanism. With regard to good enforcement practices we refer to LAPSI 2.0 WP4 and the final version of Good practices on Institutional embedding and enforcement.
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Interim findings
The above lists a variety of good practices that national authorities might take into account to establish an access regime that is re-use friendly, meaning that is in line with the goals and rationale of the PSI Directive and as such stimulates re-use. Ten different elements that feature in national statutory access regimes have been assessed and ‘good practices’ with regard to these elements have been collected. The list is not meant to be exhaustive, it can be used as a guideline for national authorities to improve their access regime and stimulate re-use.
On all elements we describe different good practices. No ranking of practices has been made to yield ‘best practices’, as multiple practices may be regarded as good. What matters is whether the outcome of the practice is re-use friendly and promotes re-use. For an access-regime to be regarded as re-use friendly, it needs to take the following elements into account:
The scope of the concepts of ‘Public Sector Body’ and ‘document’ must be clear beforehand and interpreted broadly;
Limitations to access needs to be defined precisely, be limited in number (exhaustive list) and interpreted narrowly so as to ensure the broadest possible access for re-use;
An access regime must incorporate a non-discrimination principle, that is treat all applicants on equal footing;
Re-users must be able to request bulk information and PSB’s should allow a dynamic supply of information. In addition, requests must be processed promptly;
An access regime has mechanisms that provide search support to improve the discoverability of PSI;
The format in which the documents are disclosed should be machine-readable to stimulate re-use. However, this aspect should not affect format from being human readable;
Charges for access should not be made, or be kept low so as to not created additional costs for re-use (bearing in mind however competition law concerns);
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Sector specific examples
As noted in the introduction, freedom of information laws have the widest coverage in terms of types of public sector bodies and types of information when it comes to rights of access and duties to disclose PS. Much of the information/data that is both of commercial interest and of public interest is however regulated by sector specific legislation. Unlike FOIA, the rationale for this specific legislation is not (or not so much) to increase accountability of public services or enable informed participation in democratic processes. Rather, PSBs are charged with producing and disseminating certain kinds of information such as statistics, meteorological data, company data and cadastral data to safeguard other (public) interests. These include the steady and reliable supply of information needed for public policy and administration (e.g. statistics for economic/social policy, meteorological data for environmental policies), or to provide legal certainty to actors and promote smooth legal transactions (e.g. public registers on companies, land ownership).
In this section we look to three sector specific areas, in order to paint a richer picture on legal aspects of access. In the field of meteorological data, we describe the move by the Norwegian and Dutch meteorological institutes towards delivering more open data within the ‘confines’ so to speak of their respective regulatory environment. In the field of company data, we look to a number of countries thought to have a ‘progressive’ re-use approach as well. Finally, as an example of how large scale cooperation in the public sectors across borders can lead to improved possibilities for use we consider the INSPIRE regulatory framework through a re-use lens.
4.1 Legal information
Online free access to legal information
The development of legal publishing in recent decades from paper based (near) commercial monopolies towards electronic open access is instructive, as it concerns what is public sector information par excellence. Everyone is presumed to know the law so the old adagio goes. Promulgation of the legal instruments is prescribed in many a constitution. It ensures the law is known and by way of publication the law obtains its force. Considering the role of courts not only in applying but in shaping (written) law through interpretation the publication of case law makes decision making by the courts more transparent (and this serves accountability) and helps institutions and citizens to follow the development of law.
In the pre-Internet era law was published in specialized journals and case law journals, either printed by printers with a legal monopoly or by a few commercial legal publishers. Most legal information publications were tailored to and accessed almost exclusively by professionals in the field of law. The creation of legal information
